If Trump declares a national emergency over the border, he'll be on solid legal ground

By Joseph DiGenova

Feb 14, 2019 | 6:13 PM

In this March 13, 2018 file photo, President Donald Trump talks with reporters as he reviews border wall prototypes in San Diego. (Evan Vucci / AP)

President Trump will have the law on his side when he uses the power of his office to secure the U.S. border with Mexico.

Congress, after the longest government shutdown in American history and weeks of negotiation, appropriated $1.375 for new physical barriers. But the bill bipartisan negotiators delivered is largely unsatisfying to both parties and will not, on its own, deliver the solutions our law enforcement professionals need.

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The current political reality in Washington ensures that the crisis on our southern border will continue to go unresolved unless the executive branch steps in.

Fortunately, both the Constitution and the Congress have placed the authority to do so firmly with the President of the United States.

The pivotal Supreme Court case on executive authority is 1952’s Youngstown Sheet & Tube Co. vs. Sawyer, which struck down President Harry Truman’s unilateral seizure of the American steel industry.

In his concurrence with the majority opinion, Justice Robert Jackson identified three categories of executive action: those taken against Congress’s wishes, those taken in a “twilight” category where Congress’s intention is unclear, and actions like the one President Trump may be preparing to take now, where Congress has already delegated the authority to act. This last category is where presidential power is at its zenith, carrying almost the full undivided power of the U.S. government.

As Jackson put it 67 years ago, “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power.”

Even before the last two months of disappointing negotiations, Congress was hardly silent on our lawless border. The legislative branch has spoken on the problem many times and on each of these occasions, it has granted the President substantial powers to fix it.

The 2006 Secure Fence Act, for example, commands the executive branch to “take all actions...necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States…,” specifically including physical barriers.

The Immigration and Nationality Act grants the President the authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The funding bill President Trump will be signing on Friday further clarifies Congress’s delegation to the President of authority to take the steps necessary to secure the southern border and reiterates specific authority to construct walls.

Conversely, Congress has never significantly restricted the President from building physical barriers or taking other steps to secure the border — not in Friday’s compromise bill, and not any of the times Congress spoke on this issue in the past.

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The main unresolved question is simply how the President can use existing appropriations to carry out those responsibilities without new, specific bequests from Congress beyond the $1.375 billion in this latest bill.

The method discussed most often is a declaration of a “national emergency.”

Despite the ominous-sounding name, national emergency declarations are commonplace, having been issued dozens of times since they were formalized in the National Emergencies Act (NEA) of 1976.

Every administration since Jimmy Carter’s has invoked the NEA repeatedly. In fact, 31 “national emergencies” are in force today, including three that President Trump himself initiated without major controversy.

It would be absurd to argue that this President has authority to declare a national emergency over human rights abuses in Nicaragua, but not in response to the ongoing humanitarian and security crisis of human trafficking, drug importation, and unchecked illegal immigration on our own border.

In this case, the emergency powers Congress has already delegated to the President are perfectly tailored to allow him to solve the border crisis. A declaration of national emergency authorizes the President, “without regard to any other provision of law,” to tap into funds already appropriated for military construction and the U.S. Army Corps of Engineers’ civil works program.

Until Congress passes a new law or resolution — which would require a two-thirds majority in both houses if President Trump were to issue a veto — the legislative branch has already given the President ample authority to declare a state of emergency on the southern border.

So long as Congress remains unwilling to legislate a specific plan to bring our porous border under control, the President has the responsibility to use that previously-delegated authority to protect the American people.

DiGenova is an American attorney who served as the United States Attorney for the District of Columbia from 1983 to 1988.